United States District Court, E.D. Washington
FRIENDS OF MOON CREEK, an unincorporated association, Cheryl and Robert Balentine, George A. and Jane Doe Tyler; Douglas M. and Jane Doe Anderson; Tom and Michele Bowyer Joe F. and Jane Doe Struther; Mark and Jane Doe Moeser; Gaylan and Jane Doe Warren, and Michael and Jane Doe Jeffrey, Plaintiffs,
DIAMOND LAKE IMPROVEMENT, ASSOCIATION, INC., PHIL ANDERSON, Director Department of Fish & Wildlife, SHARON SORBY, Coordinator Pend Oreille County Noxious Weed Control Board, Defendants/Cross-/Counter-Claimants.
ORDER RE: MOTION TO SET ASIDE PRELIMINARY
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Diamond Lake Improvement
Association's Motion to Set Aside Preliminary Injunction
(ECF No. 244). Response (ECF No. 251) and Reply (ECF No. 255)
briefs were filed and the Motion was submitted without oral
argument. Movant originally requested oral argument, but
withdrew the request in its Reply brief (ECF No. 255, p. 2).
Plaintiffs did not request oral argument, and the court deems
the Motion appropriate for submission without argument. Local
Introduction and Procedural History
action was commenced with the filing of a Complaint for
Declaratory and Injunctive Relief on November 21, 2013. The
parties engaged in extensive motion practice, the Complaint
was twice amended, and cross and counter claims were filed.
The court heard oral argument on the Motion for Preliminary
Injunction and three Motions to Dismiss on January 23, 2014.
On February 27, 2014, the court issued an Order denying the
Motions to Dismiss. (ECF No. 71). On March 27, 2014, the
court issued an Order Granting in Part and Denying in Part
(ECF No. 80) Plaintiff's Motion for Preliminary
Injunction. The Motion was granted as to only Defendant
Diamond Lake Improvement Association (“DLIA”) and
prohibited DLIA from “entering on to the real property
of Plaintiff's members” and taking action pursuant
to “the still active HPA [Hydraulic Project Approval] #
127229-03.” (ECF No. 80, p. 11).
several more motions were presented to this court, including
dispositive motions. On February 5, 2015, the court denied
Defendant Anderson's, Director of the Washington
Department of Fish & Wildlife, Motion for Summary
Judgment and also denied Plaintiffs' Cross-Motion for
Summary Judgment. (ECF No. 172). On May 13, 2015, the court
denied DLIA's Motion to Dismiss for Lack of Jurisdiction.
(ECF No. 205). In a separate Order of May 13, 2015, the court
granted in part and denied in part Defendant Sorby's
Motion for Summary Judgment and Plaintiffs' Motion for
Summary Judgment. (ECF No. 206).
thereafter, on May 19, 2015, Plaintiffs filed a
“Complaint for Damages and for Injunctive Relief”
in the Superior Court of Pend Oreille County. (Filed herein
at ECF No. 214). Defendants then filed a Joint Motion to Stay
this action. (ECF No. 213). On August 17, 2015, this court
issued an Order granting the Motion to Stay. (ECF No. 216).
Defendants contended a stay was in the interests of judicial
economy because the state Complaint involved additional
claims and sought additional relief and therefore the
resolution of this federal action would not resolve all
claims presented in the state action. In granting the stay,
this court observed: “The primary claim at issue in
this case is a state law trespass claim against a private
homeowner's association, DLIA.” (ECF No. 216, p.
3). The court also recognized the interest in judicial
economy of having all claims resolved in the state court. The
court further observed much discovery and motion practice had
already taken place and “it would appear the parties
are in a position to request an expedited trial setting in
state court.” (Id.). The parties represented
to this court they should be able to conclude discovery in
three to four months. Unfortunately, the interests of
judicial economy do not appear to have been served in this
matter, as the dispute is now over four years old and has yet
to proceed to trial.
The State Court Litigation
parties have filed several status reports informing the
court's understanding of the pendency of the state
litigation. The parties scheduled a mediation for February
2016, but the mediation was unsuccessful. (ECF No. 224 &
226). The parties then filed dispositive motions in state
court and trial was scheduled for May 2, 2017. (ECF No. 227).
The parties report the claims against Defendant Anderson were
dismissed on summary judgment, and Defendant Sorby's
Motion for Summary Judgment based on qualified immunity was
denied. (ECF No. 226 & 235). An order certifying the
question of qualified immunity to the Washington Court of
Appeals was entered, and the court heard oral argument on
September 8, 2017. As a result of the certification, the
state trial court struck the May 2, 2017, trial date.
DLIA also moved for summary judgment, which was granted in
part. DLIA reports it obtained summary judgment on all claims
except for a procedural Due Process claim. (ECF No. 244).
DLIA obtained a favorable ruling on Plaintiffs' trespass
claim. DLIA reports the trial court denied Plaintiffs'
Motion to Reconsider and request for certification of
discretionary review. Plaintiffs' recent filings confirm
the state trial court dismissed Plaintiffs' trespass
claims and denied the request for discretionary review. (ECF
No. 251, p. 5).
moves for relief from the Preliminary Injunction entered on
March 27, 2014, and argues Plaintiffs can no longer
demonstrate a likelihood of success on the merits of their
trespass claims, because the claims have been adjudicated
against them in state court. Plaintiffs argue the state trial
court ruling on the trespass claim was erroneous because
“the trial court found that substantial damages are now
a necessary element of any simple common law trespass
claim.” (ECF No. 251, p. 2).
plaintiff seeking preliminary injunction “must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in
his favor, and that an injunction is in the public
interest.” Winter v. Natural Resources Defense
Council, 555 U.S. 7, 21 (2008). A preliminary injunction
is an “extraordinary remedy” not awarded as of
right. Id. at 23. In Winter, the Supreme
Court rejected the Ninth Circuit's approach which had
allowed for an injunction to be entered on the
“possibility” of irreparable harm, and stated
such harm must be “likely”. As an alternative to
demonstrating a likelihood of success on the merits, a movant
for a preliminary injunction may establish “serious
questions going to the merits, and that the balance of the
hardships tips sharply in its favor.” Soda Mountain
Wilderness Council v. Bureau of Land Management, 534
Fed.Appx. 680, 683 (9th Cir. 2013); see
also Alliance for Wild Rockies v. Cottrell, 632
F.3d 1127 (9th Cir. 2011). The grant of a
preliminary injunction is an exercise of judicial discretion.
Sierra On-Line v. Phoenix Software, 739 F.2d 1415,
1421 (9th Cir. 1984). A preliminary injunction
“is not a preliminary adjudication on the merits but
rather a device for preserving the status quo and preventing
the irreparable loss of rights before judgment.”
Id. at 1422.
this court heard the Motion for Preliminary Injunction, it
determined Plaintiffs had demonstrated a likelihood of
success on the merits of the trespass claim. Plaintiffs had
presented Declarations supporting the claim. These
Declarations included: Cheryl Ballentine submitting she
suffered a headache from the herbicide spray (ECF No. 4);
Gaylen Warren stated the airboat driver threatened/attempted
to run him over (ECF No. 6); Mark Moeser stated the beaver
pond on his property was destroyed by the Defendants'
activity which dramatically decreased his property value.
(ECF No. 7); and Doug Anderson who operates SpruceWood Farms
from his 5 acre parcel and sells plants, trees, and shrubs,
which he contended were contaminated by the herbicide
application. (ECF No. 8). Additionally, Joe Struthers stated
he told DLIA they could not use his property as an access
point to the beaver dams and called local police about the
trespass, but they refused to act. (ECF No. 10). The court
found these Declarations, and others, established a
likelihood of success on the merits on the trespass claim.
court also noted: “It is well-established that the loss
of an interest in real property constitutes an irreparable
injury.” Park Village Tenants Ass'n v.
MortimerHoward Trust,636 F.3d 1150, 1159
(9th Cir. 2011). This court looked at the balance
of the equities and found that although both DLIA and
Plaintiffs sought to protect and preserve their respective
real property, the equities were in favor of Plaintiffs who
alleged their property had been ...